Jose F.S. SIMOY, Senior Airman
U. S. Air Force, Appellant
Crim. App. No. 30496
United States Court of Appeals for the Armed Forces
Argued July 14, 1998
Decided October 20, 1998
CRAWFORD, J., delivered the opinion of the
in which COX, C.J., joined. SULLIVAN, GIERKE, and EFFRON, JJ.,
each filed separate concurring opinions.
For Appellant: Lieutenant Colonel Charles L. Carpenter, USAFR, and Captain Harold M. Vaught (argued); Lieutenant Colonel Kim L. Sheffield and Major Kevin P. Koehler (on brief); Colonel Douglas H. Kohrt.
For Appellee: Lieutenant Colonel Michael
J. Breslin and
Captain Mitchel Neurock (argued); Colonel Brenda J. Hollis
(on brief); Colonel Theodore J. Fink and Major LeEllen Coacher.
Military Judge: Michael A. Kilroy
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL OPINION.
Opinion as amended Apr 9, 1999
Judge CRAWFORD delivered the opinion of the Court.
Appellant was convicted in July 1992 at Andersen Air Force Base, Guam, of attempted murder, conspiracy to commit robbery, desertion terminated by apprehension, felony murder, and robbery, in violation of Articles 80, 81, 85, 118, and 122, Uniform Code of Military Justice, 10 USC §§ 880, 881, 885, 918, and 922, respectively. He was sentenced to be put to death, forfeit all pay and allowances, and be reduced to the lowest enlisted grade. The convening authority approved the sentence, and the Court of Criminal Appeals, in an en banc decision, affirmed the findings and sentence. 46 MJ 592 (A.F.Ct.Crim.App. 1996). This case is presented to this Court for mandatory review. Art. 67(a)(1), UCMJ, 10 USC § 867(a)(1). Appellant has assigned 49 issues in this case.
We agree with the court below as to all of the issues related to the findings. We will discuss the following issue:
RCM 1006(d)(3)(A), Manual for Courts-Martial, United States (1995 ed.), states:
(1) Unanimous findings of guilt of an offense that authorizes the imposition of the death penalty, RCM 1004(a)(2);
(2) Unanimous findings beyond a reasonable doubt that an aggravating factor exists, RCM 1004(b)(7);
(3) Unanimous concurrence that aggravating factors substantially outweigh mitigating factors, RCM 1004(b)(4)(C); and
(4) Unanimous vote by the members on the death penalty, RCM 1006(d)(4)(A). See Loving v. Hart, 47 MJ 438, 442 (1998).
If at any step along the way there is not a unanimous finding, this eliminates the death penalty as an option. The instructions to the members should make these four gates clear and also note that, even if gates (1), (2), and (3) are passed, they may not vote on the death penalty first if there is a proposal by any member for a lesser punishment, i.e., life in prison.
The failure to give the instruction requiring voting on the lightest proposed sentence first is a plain, clear, obvious error that affected the substantial rights of appellant. United States v. Thomas, supra. We reject the Government’s argument and also the opinion below, insofar as it holds that the failure to object to the instruction and the submission of a defense-requested instruction constitute a waiver or forfeiture of this issue.
Some of those members who voted for the death penalty in this case might have agreed with life in prison. Thus, unless they held out on their vote for the lesser punishment of life, three-fourths might very well have agreed on life in prison rather than death. Thus, it was important for the members to understand that, because of requirements for unanimous votes, any one member at any stage of the proceeding could have prevented the death penalty from being imposed.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed as to findings but is reversed as
to the sentence. The record of trial is returned to the Judge Advocate
General of the Air Force. A rehearing on the sentence may be ordered.
SULLIVAN, Judge (concurring):
The first issue in this case should also be resolved in appellant’s favor. It asks:
I strongly disagree with the military judge
and the Court of Criminal Appeals that some general doctrine against the
comparison of court-martial sentences undermines the relevance
of the proffered evidence in this capital case. Admittedly, appellant is
not legally entitled to the same or a lesser sentence as his brother, the
actual triggerman in this case. See Hatch v. State of Oklahoma,
58 F.3d 1447, 1466-67 (10th Cir. 1995). However, to hold the
triggerman’s fate is irrelevant in appellant’s case, a nontriggerman participant
in the same murder, ignores applicable federal practice without reason.
See generally Article 36, Uniform Code of Military Justice,
10 USC §
836 (apply the principles of law and the rules of evidence generally recognized
in the trial of criminal cases in the United States district courts). This
is a capital case, and Mil.R.Evid. 401, Manual, supra, must be applied
consistently with RCM 1004(b)(3). See generally RCM 1001(c)(3)(rules
of evidence relaxed during sentencing).
GIERKE, Judge (concurring)
I agree completely with the majority opinion. I write separately to express my views on Issue I, in order to avoid another reversible error at any sentence rehearing that may be ordered.
In my view the military judge erred by excluding
evidence that the actual killer would not face the death penalty. Dennis
Simoy, the triggerman, was facing trial by the same sovereign for his participation
in appellant's crime. While 18 USC § 3592(a)(4) and 21 USC §
848(m)(8) are not directed at courts-martial, they are persuasive authority
that Congress considers the sentence of a co-actor relevant in federal
EFFRON, Judge (concurring):
I agree that it is appropriate to limit the holding on sentencing to Issue III, which is dispositive. With respect to Issue I, which is addressed by Judges Sullivan and Gierke, I note that our opinion in United States v. Grill, 48 MJ 131 (1998), as well as the practice in federal civilian death penalty cases, in light of Article 36, Uniform Code of Military Justice, 10 USC § 836, see 18 USC § 3592(a)(4) and 21 USC § 848(m)(8), raise serious questions as to the validity of the ruling by the military judge excluding information about the sentence of a co-actor.
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